Harvard Law Review Harvard Law Review Harvard Law Review

Fourth Amendment

City of Los Angeles v. Patel

The distinction between “facial” and “as-applied” challenges is a notoriously confusing area of law. Judicial review of Fourth Amendment reasonableness claims, however, has generally been insulated from that confusion. Last Term, in City of Los Angeles v. Patel,1×1. 135 S. Ct. 2443 (2015). the Supreme Court held that facial challenges under the Fourth Amendment are neither categorically barred nor especially disfavored. It then facially invalidated a Los Angeles municipal code compelling hotel operators to gather certain information about guests and provide it to police on demand. While this ruling marks a surprising departure from the Court’s recent rhetoric discouraging facial challenges, the Court left unaddressed many aspects of its standard for facial adjudication of Fourth Amendment claims. By doing so, the Patel Court added to the confusion around the facial versus as-applied forms of judicial review and potentially opened the door to a new generation of facial Fourth Amendment challenges with insufficient guidance to legislatures, courts, and litigants on the proper standard for such challenges.

Los Angeles Municipal Code section 41.49 requires hotel and motel operators to collect and retain certain information about their guests.2×2. See L.A., Cal., Mun. Code § 41.49(2) (2008). Section 41.49(3)(a), the sole provision at issue in Patel, required that this record be kept in a hotel’s reception or check-in area for ninety days.3×3. See id. § 41.49(3)(a). Moreover, the provision required that the record “be made available to any officer of the Los Angeles Police Department for inspection.”4×4. Id. Failure to comply was a misdemeanor punishable by up to six months in jail and a $1000 fine.5×5. L.A., Cal., Mun. Code § 11.00(m) (2004). Respondents, operators of motels and a lodging association, sued the City under 42 U.S.C. § 1983, arguing that section 41.49(3)(a)’s warrantless inspection provision violated the Fourth Amendment.6×6. Brief for the United States as Amicus Curiae Supporting Petitioner at 3, City of Los Angeles v. Patel, 135 S. Ct. 2443 (2015) (No. 13-1175). Although respondents originally brought both facial and as-applied challenges, they stipulated to drop the as-applied challenge.7×7. Id. The parties also stipulated that the respondents “have been . . . and continue to be subject to searches and seizures of motel registration records . . . without consent or warrant pursuant to [section] 41.49.”8×8. Patel v. City of Los Angeles, No. CV 05-1571, 2008 WL 4382755, at *1 n.1, *2 (C.D. Cal. Sept. 5, 2008). The stipulated record contained no other facts.

The district court entered judgment for the City.9×9. Id. at *3. In a short, unpublished opinion, the court found that hotels could maintain multiple sets of registers and make registers available in publicly accessible ar-eas,10×10. See id. thereby ensuring that nonpublic records and locations are not invaded. Ultimately, because section 41.49(3)(a) could “be reasonably interpreted as a measured ordinance meant to discourage and fight crime in hotels and motels,” the ordinance was “not unconstitutional on its face.”11×11. Id. The court did not decide whether the ordinance fell within the administrative search exception. Id. at *2–3.

The Ninth Circuit initially affirmed.12×12. Patel v. City of Los Angeles (Patel I), 686 F.3d 1085, 1086 (9th Cir. 2012). Writing for the panel, Judge Clifton found that hotel operators had no reasonable expectation of privacy in the guest-registry information, as guest registers are generally kept on publicly accessible counters, an “unlikely” location to generate a reasonable expectation of privacy.13×13. Id. at 1088. Nor could the common law trespassory test, recently resurrected in United States v. Jones,14×14. 132 S. Ct. 945 (2012). The Jones Court announced that the “Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test.” Id. at 952. Under the Jones test, “a ‘search’ within the original meaning of the Fourth Amendment” occurs where the “[g]overnment obtains information by physically intruding on a constitutionally protected area.” Id. at 950 n.3. save the Patels’ challenge, as section 41.49(3)(a) did not “physically dispossess[] [hoteliers] of any property.”15×15. Patel I, 686 F.3d at 1089. Judge Pregerson dissented. Noting that warrantless searches are per se unreasonable under the Fourth Amendment, he criticized the majority for upholding the ordinance without first articulating a “specifically established and well-delineated exception[]” to the warrant rule. Id. at 1091 (Pregerson, J., dissenting) (quoting Arizona v. Gant, 556 U.S. 332, 338 (2009)).

Upon rehearing en banc, the Ninth Circuit reversed.16×16. Patel v. City of Los Angeles (Patel II), 738 F.3d 1058, 1065 (9th Cir. 2013) (en banc). Writing for the seven-member majority, Judge Watford found that, even making two key assumptions that triggered “more lenient Fourth Amendment principles governing administrative record inspections,”17×17. Id. at 1064. First, he assumed that section 41.49 “intended to authorize administrative record inspections,” which did not require search warrants. Id. at 1063. Second, he assumed that section 41.49 did not authorize police access to a hotel’s nonpublic areas because the government would need an administrative search warrant to access such areas even to enforce health and safety regulations. Id. section 41.49 was still facially invalid.18×18. Id. at 1063–64. While warrantless inspections under section 41.49 were “sufficiently limited in scope, relevant in purpose, and specific in directive so that compliance [would] not be unreasonably burdensome,”19×19. Id. at 1064 (quoting See v. City of Seattle, 387 U.S. 541, 544 (1967)). the statute nonetheless failed to provide hotels with an opportunity to “obtain judicial review of the reasonableness of the demand prior to suffering penalties for refusing to comply.”20×20. Id. (quoting See, 387 U.S. at 545). This failure constituted a “procedural deficiency [that] affects the validity of all searches authorized by [section] 41.49(3)(a).”21×21. Id. at 1065.

Judge Tallman and Judge Clifton each authored a dissent. Pointing out the impropriety of entertaining facial challenges under the Fourth Amendment, Judge Tallman admonished the majority for “engraft[ing] into [the ordinance] language that is not there” by assuming that it authorizes only warrantless inspections.22×22. Id. at 1066–68 (Tallman, J., dissenting). In fact, “the record . . . is totally bereft of facts to support the majority’s assumption that the statute is actually being applied in that manner.”23×23. Id. at 1069. Without such facts, the majority opinion constituted a mere “advisory opinion” from Judge Tallman’s perspective.24×24. Id. Likewise, Judge Clifton first argued that the Patels failed to meet the “very high bar” for a successful facial attack.25×25. Id. at 1070 (Clifton, J., dissenting) (citing United States v. Salerno, 481 U.S. 739, 745 (1987)). Next, Judge Clifton criticized the majority for failing to analyze whether the searches at issue were, in fact, unreasonable.26×26. Id. at 1072. Judge Clifton also disagreed with the majority’s conclusion that the absence of precompliance judicial review constituted a “fatal flaw” in the ordinance. Id. at 1071. Because that absence establishes only that the ordinance does not qualify for the administrative subpoena exception, which in turn is only one of many exceptions to the warrant requirement, Judge Clifton asserted that the majority had to adjudicate the reasonableness of section 41.49(3)(a). Id. at 1072. To prevail in a facial challenge, the Patels had to establish not only that they had a subjective expectation of privacy in their guest registry, but also that all hoteliers expect such privacy and that this expectation is objectively reasonable.27×27. Id. at 1072. The record contained no such evidence, without which the Patels could not demonstrate that a search under section 41.49(3)(a) was “unreasonable in all circumstances.”28×28. Id. at 1074.

The Supreme Court affirmed. Writing for the Court, Justice Sotomayor29×29. Justices Kennedy, Ginsburg, Breyer, and Kagan joined the majority opinion. reached two discrete holdings: that “facial challenges under the Fourth Amendment are not categorically barred or especially disfavored”30×30. Patel, 135 S. Ct. at 2449. and that section 41.49(3)(a) was facially unconstitutional.31×31. Id. at 2451. In reaching the first holding, the Court began by clarifying that the Fourth Amendment is no different from the Foreign Commerce Clause or the First, Second, and Fourteenth Amendments in its capacity to facially invalidate statutes.32×32. See id. at 2449. The majority also explained how courts analyze facial challenges. While a plaintiff must indeed “establish that a ‘law is unconstitutional in all of its applications,’”33×33. Id. at 2451 (quoting Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 (2008)). a reviewing court considers “only applications of the statute in which it actually authorizes or prohibits conduct.”34×34. Id. Thus, in Planned Parenthood of Southeastern Pennsylvania v. Casey,35×35. 505 U.S. 833 (1992). the facial challenge to the spousal-notification law did not include “the group for whom the law [wa]s irrelevant” — the women who would have voluntarily notified their husbands.36×36. Patel, 135 S. Ct. at 2451 (quoting Casey, 505 U.S. at 894 (plurality opinion)). Likewise, the inquiry into section 41.49(3)(a)’s constitutional validity should exclude hoteliers who would have consented to the inspections, as well as warrantless searches justified by exigency.37×37. Id.

Next adjudicating section 41.49(3)(a)’s facial validity, Justice Sotomayor first assumed that the guest-registry search was exempt from the Fourth Amendment’s warrant requirement, on the ground that it served a “special need”38×38. Id. at 2454 (quoting Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 619 (1989)). The special need consisted of “compliance with the recordkeeping requirement, which in turn deters criminals from operating on the hotels’ premises.” Id. distinct from the “general interest in crime control.”39×39. Id. at 2452 (quoting City of Indianapolis v. Edmond, 531 U.S. 32, 44 (2000)). Even so, section 41.49(3)(a) could not fall within the administrative search exception to the warrant requirement because it deprived respondents of an opportunity for precompliance judicial review. Without this “minimal requirement,” the ordinance created an “intolerable risk” of authorizing searches that exceed their statutory limits or providing a “pretext to harass hotel operators and their guests.”40×40. Id. at 2452–53.

The majority concluded by rejecting the principal dissent’s categorization of hotels as a “closely regulated” industry, which provides an exception to the warrant and probable-cause requirements.41×41. Id. at 2454–55. Justice Sotomayor pointed out the rarity of such industries, noting that the Supreme Court has recognized only four over the past forty-five years.42×42. Id. at 2454. The four recognized industries are selling liquor, dealing firearms, mining, and operating an automobile junkyard. Id. Even if hotels were closely regulated, however, section 41.49(3)(a) would still fail two of three prongs of the New York v. Burger43×43. 482 U.S. 691 (1987). test for Fourth Amendment reasonableness.44×44. Patel, 135 S. Ct. at 2456. Although a “substantial” government interest may inform the ordinance’s regulatory scheme, thus satisfying the first criterion, warrantless inspections are not “‘necessary’ to further [the] regulatory scheme,” and the inspection program does not provide “a constitutionally adequate substitute for a warrant.”45×45. Id. (alteration in original) (quoting Burger, 482 U.S. at 702–03). The majority lastly emphasized the narrow nature of its holding, noting that despite section 41.49(3)(a)’s invalidity, officers remain free to conduct a “surprise inspection by obtaining an ex parte warrant” or to “guard[] the registry pending a hearing on a motion to quash” if they reasonably suspect that unscrupulous hoteliers could alter the record.46×46. Id. (citing Marshall v. Barlow’s, Inc., 436 U.S. 307, 319–21 (1978)).

Justice Scalia penned the principal dissent.47×47. Chief Justice Roberts and Justice Thomas joined this dissent. First, he observed the great governmental interest at stake in regulating hotel recordkeeping, as motels are a “particularly attractive site for criminal activity ranging from drug dealing and prostitution to human trafficking.”48×48. Id. at 2457 (Scalia, J., dissenting). Next, he assumed, without deciding, that the Patels may seek facial relief under the Fourth Amendment.49×49. Id. A plaintiff’s self-labeling of his challenge as facial or as-applied could not provide an “independent reason to reject it” because the “narrowness or breadth of the ground the Court relies upon in disposing of [a challenge]” — and not the plaintiff’s characterization of it — determines the effect of any given case.50×50. Id. at 2458. Even so, Justice Scalia warned that facial challenges may be a “poor strategic move, especially in a Fourth Amendment case, where the reasonableness of a search is a highly factbound question and general, abstract rules are hard to come by.” Id.

Guided by these assumptions, Justice Scalia argued that section 41.49 was reasonable, especially in light of the “longstanding” and “comprehensive” tradition of regulating hotels, which in his opinion constituted a closely regulated industry.51×51. Id. at 2460. Indeed, hotel regulations were “substantially more comprehensive than the regulations governing junkyards,” id., and the frequency with which courts identified new closely regulated industries increased dramatically when taking into account cases from lower courts, which have recognized massage parlors and jewelers, barbershops and “even rabbit dealers” as closely regulated businesses, id. at 2461. In the context of a closely regulated industry, section 41.49 “easily satisfie[d]” the three Burger requirements for warrantless searches.52×52. Id. at 2461. First, it furthered Los Angeles’s substantial interest in deterring “drug dealing, prostitution, and human trafficking.”53×53. Id. Second, its warrantless-inspection requirement was necessary to advance the government interest, as the ordinance’s very effectiveness came from its unpredictable nature.54×54. See id. at 2461–62. Third, section 41.49(3)(a) sufficiently advised hotel operators of the “scope and objects of the search” by limiting police searches to public parts of hotels, thereby providing an adequate substitute for a warrant.55×55. Id. at 2463 (quoting Marshall v. Barlow’s, Inc., 436 U.S. 307, 323 (1978)).

In a separate dissenting opinion, Justice Alito, joined by Justice Thomas, articulated five examples of constitutionally permissible searches authorized by section 41.49(3)(a). The examples ranged from an exigent circumstance to a motel that keeps its guest register open on the front desk for anyone to walk up and flip through.56×56. See id. at 2464–66 (Alito, J., dissenting). Justice Alito further questioned whether “the Fourth Amendment’s application to warrantless searches and seizures is inherently inconsistent with facial challenges.”57×57. Id. at 2466. Even assuming, however, that Fourth Amendment fa-cial challenges “ever make sense conceptually, this particular one fail[ed] under basic principles of facial invalidation.”58×58. Id.

The Patel Court’s declaration that Fourth Amendment facial challenges are not disfavored marks a surprising break from the Court’s recent rhetoric disavowing facial invalidation of statutes. That the substantive backdrop of this announcement was the Fourth Amendment — an area of law often characterized by fact-intensive, incremental adjudication — is doubly surprising. Given Patel’s departure from the purported aversion to facial adjudication as well as its potential to jump-start a line of facial challenges under the Fourth Amendment, the Court had an important opportunity to elaborate on the proper standard for facial challenges, both in general and in the specific context of Fourth Amendment reasonableness. By failing to provide sufficiently analogous precedent and inconsistently analogizing to the abortion context, however, the Court instead added to the confusion around facial versus as-applied challenges.

Facial and as-applied challenges do not enjoy a neat demarcation,59×59. See, e.g., Nicholas Quinn Rosenkranz, The Subjects of the Constitution, 62 Stan. L. Rev. 1209, 1232 (2010) (deeming both terms “malapropisms, and the doctrine distinguishing between them . . . uncommonly confused”). At times, even the Justices themselves have disagreed on how to properly categorize a challenge. See Doe v. Reed, 130 S. Ct. 2811, 2817 (2010) (evading categorization of challenge as facial or as-applied, observing instead that it “has characteristics of both” but ultimately that “[t]he label is not what matters”). but conventional wisdom defines facial challenges as “ones seeking to have a statute declared unconstitutional in all possible applications,” while as-applied challenges are “treated as the residual, although ostensibly preferred and larger, category.”60×60. Richard H. Fallon, Jr., Fact and Fiction About Facial Challenges, 99 Calif. L. Rev. 915, 923 (2011). Foundational cases like United States v. Salerno61×61. 481 U.S. 739 (1987). have perpetuated the common understanding that facial challenges should be rare and difficult to mount successfully.62×62. Id. at 745 (“A facial challenge to a legislative Act is . . . the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.”). Of course, the Court has inconsistently abided by Salerno’s dictates, as evinced by easier standards for facial invalidation found in abortion63×63. See, e.g., Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 895 (1992) (plurality opinion) (noting propriety of facial invalidation if a statute operates as a substantial obstacle “in a large fraction of the cases” where the statute is relevant); see also infra note 82. and First Amendment64×64. The overbreadth doctrine has resulted in an easier standard for facial challenges under the First Amendment. See, e.g., Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973). litigation, among others. Professor Richard Fallon’s seminal survey of six Supreme Court Terms spanning three decades has also shown that “[i]n all of those Terms, the Court adjudicated more facial challenges on the merits than it did as-applied challenges.”65×65. Fallon, supra note 60, at 918. Others have argued that the extent to which the Roberts Court embraces or eschews a facial challenge is intertwined with a case’s substantive merits. See, e.g., Gillian E. Metzger, Facial and As-Applied Challenges Under the Roberts Court, 36 Fordham Urb. L.J. 773, 774 (2009) (“The Roberts Court also appears to use as-applied challenges strategically, in particular as a device to evade recent precedent with which it dis-agrees . . . .”); Rosenkranz, supra note 59, at 1229 (“[T]he distinction ostensibly determines the outcome in an increasing number of controversial cases.”). Despite the Court’s tacit practice of entertaining facial challenges, its rhetorical reluctance for this form of judicial review has continued, particularly with the ascent of the Roberts Court.66×66. See, e.g., Caitlin E. Borgmann, Holding Legislatures Constitutionally Accountable Through Facial Challenges, 36 Hastings Const. L.Q. 563, 564 (2009) (observing that the Roberts Court has “view[ed] facial challenges with increased skepticism and hostility”).

Within Fourth Amendment reasonableness adjudication, however, the facial versus as-applied distinction has been less pronounced, perhaps because of the type of state action governed by the Fourth Amendment. Many cases in this area concern the actions of individual government officials who carry out searches or seizures, and litigants who attack the constitutionality of such actions seldom frame their suits as challenges to statutes.67×67. See Fallon, supra note 60, at 941, 967. This mode of litigation often also renders Fourth Amendment adjudication fact-intensive and context-sensitive in nature.68×68. See Rosenkranz, supra note 59, at 1241 (“[I]n the Fourth Amendment context . . . the statute matters little if at all, while the enforcement facts are crucial. . . . [T]he litigation will very much turn on the defendant’s specific facts — what exactly was searched, and when, and where.”); see also Navarette v. California, 134 S. Ct. 1683, 1688–92 (2014) (admitting close nature of case but parsing factual circumstances around an anonymous tip to analogize to Alabama v. White, 496 U.S. 325 (1990), and distinguish from Florida v. J.L., 529 U.S. 266 (2000)); Warshak v. United States, 532 F.3d 521, 528 (6th Cir. 2008) (en banc) (“In [Fourth Amendment disputes], courts typically look at the ‘totality of the circumstances,’ reaching case-by-case determinations that turn on the concrete, not the general, and offering incremental, not sweeping, pronouncements of law.” (citation omitted)). In light of the divergence between the Court’s rhetoric and practice on the propriety of facial invalidation, as well as the fact-intensive nature of Fourth Amendment adjudication, the Patel majority’s candid recognition that Fourth Amendment facial challenges are not “especially disfavored” is striking.

But the brevity with which the Court announced this holding missed an opportunity to provide much-needed clarity on the distinction between facial and as-applied challenges. In particular, the majority opinion remains unconvincing without elaboration on two key points. First, Justice Sotomayor’s list of cases that purportedly support facial challenges fails to provide a coherent standard to determine which cases are appropriate for such adjudication under the Fourth Amendment.69×69. See Patel, 135 S. Ct. at 2450. Torres v. Puerto Rico70×70. 442 U.S. 465 (1979). arguably does not involve a facial challenge, as evinced by the Court’s characterization of the appellant’s claims and the limited remedy issued.71×71. The Torres Court characterized its holding in terms of the particular search that the appellant faced pursuant to a statute. See id. at 471. Furthermore, the remedy issued was suppression of the evidence obtained through the unconstitutional search, rather than declaratory or injunctive relief barring enforcement of the statute. Id. at 474. Illinois v. Krull72×72. 480 U.S. 340 (1987). did not discuss a statute’s constitutionality; rather, it discussed the application of the exclusionary rule where an officer acted in good-faith reliance on a statute that the Illinois Supreme Court had already declared unconstitutional.73×73. Id. at 346. Meanwhile, the narrow inquiry in Ferguson v. City of Charleston74×74. 532 U.S. 67 (2001). focused only on the applicability of the “special needs” exception to a policy authorizing random drug testing for pregnant women.75×75. See id. at 76.

While the remaining four cases are indeed facial challenges brought under the Fourth Amendment,76×76. These four cases are Chandler v. Miller, 520 U.S. 305 (1997); Vernonia School District 47J v. Acton, 515 U.S. 646 (1995); Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602 (1989); and Payton v. New York, 445 U.S. 573 (1980). each of them lacked the factual ambiguity of Patel — by featuring either a concrete factual record or a statute with limited possible applications — and thus required little speculation by the reviewing Court.77×77. Payton, for instance, featured a rich record detailing the arrests of two defendants, see 445 U.S. at 576–78, and limited the remedy to defendant-specific suppression of the evidence, see id. at 591–92. Meanwhile, the drug test–authorizing statutes at issue in Chandler, Vernonia, and Skinner had straightforward, uniform applications that did not require extensive factfinding about the variety of ways in which the statutes may apply. See Chandler, 520 U.S. at 309–10; Vernonia, 515 U.S. at 650–51; Skinner, 489 U.S. at 608–12. By contrast, the Patel respon-dents challenged an ordinance with a broad range of applications without a factual record to demonstrate that breadth. Critically, the record was devoid of any indication that a hotelier had ever demanded precompliance review, let alone done so and been denied.78×78. Patel II, 738 F.3d 1058, 1069 (9th Cir. 2013) (Tallman, J., dissenting). The case thus forced the Court to speculate that such an event had taken place or to assume that the ordinance’s silence about precompliance review was akin to the lack of such opportunity. But see Burns v. United States, 501 U.S. 129, 136 (1991), abrogated on other grounds by Dillon v. United States, 560 U.S. 817 (2010) (noting various possible interpretations of statutory silence); Ill. Dep’t of Pub. Aid v. Schweiker, 707 F.2d 273, 277 (7th Cir. 1983) (“Not every silence is pregnant; expressio unius est exclusio alterius is therefore an uncertain guide to interpreting statutes . . . .”). Speculation may be an inevitable aspect of some facial adjudication of statutes,79×79. See, e.g., Catherine Gage O’Grady, The Role of Speculation in Facial Challenges, 53 Ariz. L. Rev. 867, 879–80 (2011) (recognizing that “pure facial challenges [raised] before the statute’s implementation” necessarily require judicial speculation because “no applicable context exists for a challenger to even attempt to demonstrate a personal constitutional violation”). but the variety of ways in which section 41.49 may apply requires extensive factfinding, so that the Court can understand the multiple contexts in which the law might operate. The Patel respon-dents’ failure to provide concrete facts of enforcement, despite the fact that section 41.49 had been in operation for years, thus invites undue speculation and what Justice Stevens described as an “uneasy feeling” that the respondents pursued a facial challenge even when the ordinance may be applied in a constitutional manner.80×80. See id. at 880 (quoting United States v. Salerno, 481 U.S. 739, 769 (1987) (Stevens, J., dissenting)). The factual ambiguity created by Patel’s sparse record thus distinguishes it from the cases cited in the majority opinion. The cursory inclusion of the seven cases does not explain when facial challenges are appropriate, whether they are appropriate even for cases like Patel that are plagued by factual ambiguity, and if not, how to distinguish those cases appropriate for facial adjudication from others that are not.

Second, the Court’s importation of the facial-adjudication standard from Casey is problematic without an explanation of why that stan-dard is appropriate outside of the abortion context.81×81. See Patel, 135 S. Ct. at 2451 (analogizing to Casey without enumerating rationale for importing that standard to Fourth Amendment context). Given the controversy that Casey generated by developing an easier alternative to replace the Salerno standard in abortion litigation,82×82. The Casey plurality announced that a statute is facially invalid if “in a large fraction of the cases in which [that statute] is relevant, it will operate as a substantial obstacle to a woman’s choice to undergo an abortion.” 505 U.S. 833, 895 (1992) (plurality opinion). This constitutional inquiry, moreover, should focus on “the group for whom the law is a restriction, not the group for whom the law is irrelevant.” Id. at 894. Since Casey, commentators have documented the emergence of an abortion-specific standard for facial challenges. See, e.g., Rosenkranz, supra note 59, at 1233 n.75; Rachel D. King, Comment, A Back Door Solution: Stenberg v. Carhart and the Answer to the Casey/Salerno Dilemma for Facial Challenges to Abortion Statutes, 50 Emory L.J. 873, 874–75 (2001); see also A Woman’s Choice–E. Side Women’s Clinic v. Newman, 305 F.3d 684, 687 (7th Cir. 2002) (critiquing how competing SalernoCasey standards for facial challenges to abortion statutes have “put courts of appeals in a pickle”). the Court should have articulated how abortion and Fourth Amendment litigation are analogous.83×83. Indeed, Justice Alito’s dissent showcases fundamental disagreement about using Casey to adjudicate Patel. Unlike the majority, which eliminated scenarios involving exigency or consent as “irrelevant” to adjudicating section 41.49’s constitutionality, see Patel, 135 S. Ct. at 2451, Justice Alito’s dissent included such scenarios as examples of the ordinance’s constitutional application, see id. at 2465–66 (Alito, J., dissenting). Yet nothing in Patel explains why Casey’s method of defining the relevant population to which a statute applies should be transplanted to adjudicate Fourth Amendment unreasonableness claims, especially when Casey was confined to the abortion context before Patel.84×84. A review of Supreme Court and lower court opinions yielded no majority opinions that explicitly invoked the Casey facial-challenge standard outside the abortion context. And even if the Fourth Amendment proved a suitable context for the method, the Court inconsistently invoked its analogy to the abortion context for facial judicial review. For instance, it remains unclear why the Court was willing to import Casey’s method, yet not the remedy of partial statutory invalidation from Ayotte v. Planned Parenthood of Northern New England.85×85. 546 U.S. 320, 329, 332 (2006) (vacating lower court’s facial invalidation of parental-notification law, preferring “to enjoin only the unconstitutional applications of a statute while leaving other applications in force,” id. at 329). Nor is it clear why Casey, a 1992 opinion, provides the relevant standard when subsequent decisions seem to have made facial challenges more difficult even in the abortion context.86×86. See, e.g., Gonzalez v. Carhart, 550 U.S. 124, 167 (2007) (“[T]hese facial attacks should not have been entertained in the first instance. In these circumstances the proper means to consider exceptions is by as-applied challenge.”).

Admittedly, an overarching explanation for section 41.49’s facial defect may be rooted in the implication that the ordinance’s failure to provide for precompliance judicial review necessitated its wholesale invalidation.87×87. Justice Sotomayor’s opinion hinted that section 41.49(3)(a)’s fatal flaw lay in its procedural deficiency. See Patel, 135 S. Ct. at 2452 (“[T]he City does not even attempt to argue that [section] 41.49(3)(a) affords hotel operators any opportunity whatsoever. Section 41.49(3)(a) is, therefore, facially invalid.”); Transcript of Oral Argument at 45, Patel, 135 S. Ct. 2443 (2015) (No. 13-1175) (“[A]nytime [there is a] challenge as to the lack of process . . . it doesn’t need to be as applied.”). But the Court never fully developed, let alone explicitly stated, this procedure-based standard. For instance, the opinion leaves unanswered whether the procedural defect renders the ordinance per se unreasonable or whether the procedure-driven standard is altogether separate from reasonableness adjudication. It thus fails to identify a coherent set of circumstances under which Fourth Amendment facial invalidation would be appropriate.

The Patel Court adopted a holding that unsettles accumulated conventional wisdom about the nature of Fourth Amendment adjudication. But the brevity with which it announced the rule leaves litigants and lower courts with little guidance on precisely how to bring and adjudicate such facial challenges.